its technological peers are, in fact, cable companies entitled to retransmission licenses under
Section 111. The district court further noted that the Supreme Court’s Aereo decision did not
mention, let alone abrogate, WPIX, Inc. v. ivi, Inc.,^519 which established the law in the Second
Circuit that Internet retransmission services do not constitute cable systems under Section 111.^520
The district court then turned to the factual support for finding FilmOn in contempt of the
injunction. FilmOn had not stopped broadcasting the plaintiffs’ content until it learned of the
court’s order to show cause in this case, twelve days after the Aereo decision, which the court
found, at least as to the retransmissions within the Second Circuit, to constitute a clear violation
of the injunction. Even assuming that FilmOn believed in good faith that the Aereo decision
rendered it qualified to become a cable company under Section 111, it would nevertheless have
needed to obtain a license from the Copyright Office in order to have been eligible to retransmit
the plaintiff’s content. FilmOn admitted that it had not even applied to the Copyright Office for
such license until after the plaintiffs submitted their order to show cause, and the Copyright
Office had subsequently issued a letter to FilmOn that, as an Internet retransmission service, it
fell outside the scope of the Section 111 license, a conclusion that the Copyright Office believed
Aereo did not alter.^521
Accordingly, the court found both FilmOn and its CEO in violation of the injunction.
FilmOn was ordered to pay $10,000 for each of the nine days of its noncompliance pursuant to
paragraph 3 of the 2012 consent order of judgment, plus a sanction of $90,000.^522
- Fox Broadcasting v. Dish Network
The facts of this case are discussed extensively in Section II.A.4(u) above. Pursuant to an
agreement between Fox and Dish, Dish had the right to retransmit Fox programming to its
subscribers via satellite as a pay television provider. In January of 2013 Dish introduced its
second generation “Hopper” DVR set-top box called “Hopper with Sling” that had Sling
technology (which transcoded video content from its source at the DVR set-top box and
transmitted it to remote devices over the Internet) built into the box itself. In conjunction with
the Hopper with Sling device, Dish rolled out a new service called Dish Anywhere, a mobile
access application utilizing the Sling technology that allowed subscribers to watch live television
or television programs recorded on the Hopper from any location on remote devices connected to
the Internet. No copies were made to facilitate the remote viewing via Dish Anywhere. The
(^519) 691 F.3d 275 (2d Cir. 2012).
(^520) FilmOn, 2014 U.S. Dist. LEXIS 101894 at 6, 11-12.
(^521) Id. at 14-17.
(^522) Id. at 19-20. The court found it unfair to hold FilmOn in contempt during the three-day period in which Aereo
continued to stream content after the Supreme Court issued its Aereo decision. The court therefore found
FilmOn’s noncompliance to begin on the day after Aereo stopped retransmitting content in the wake of Aereo
and ended on the day FilmOn deactivated its mini-antenna service. Id. at 20 n.3.